Final Order 1

Order Details: Notice of Motion
Pdf Text: NM In SC 576/17 Oral Order 1
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO. 2334 OF 2018
(CNR NO.MHCC010130452017)
IN
SUMMARY SUIT NO.576 OF 2017
Dinesh Mody ...Plaintiff
V/s
Classical Numismatic Gallery ...Defendant
Coram : His Honour Judge Shri M.M.Umar
(C.R. No.28)
Dated : 14/02/2019
Adv. Mr.Mayur Agarwal for plaintiff.
Adv. Mr.Jay Vakil for defendants.
ORDER BELOW NOTICE OF MOTION NO.2334/18
1. This Notice of Motion is taken out by the defendant for
condoning the delay of 5 days in filing the reply to Summons for
Judgment. The plaintiff has resisted to the said Notice of Motion by
filing reply.
2. Read the application and reply.
3. The learned advocate for the defendant has submitted that
the copy of Summons for Judgment was served upon the advocate for
defendant and it was forwarded to the defendant at Ahmedabad for
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NM In SC 576/17 Oral Order 2
instructions in the matter. It is submitted that the defendant was busy
in the marriage of his daughter which was scheduled on 4/2/2018 and
he gave the instructions on or about 10/2/2018 and thereafter the
reply of Summons for Judgment was drafted. It is submitted that the
defendant has good case on merits. Therefore, it is requested to
condone the delay in filing reply to Summons for Judgment otherwise
serious prejudice would cause to the defendant.
4. Per contra, the advocate for plaintiff has submitted that the
defendant has not shown the sufficient cause for condoning the delay
and it is not properly explained. It is submitted that due to negligence
on the part of defendant the delay is caused and it should not be
condoned. Lastly, it is requested to reject the application.
5. I have duly considered the above submissions of both the
sides so also, I have gone carefully through the case record. There is no
dispute that the delay of 5 days is caused in filing the reply to the
Summons for Judgment. It is well settled that while considering the
prayer for condoning the delay, liberal approach should be adopted.
The Court has to take into account, if there is a acceptable or
pardonable explanation. It is also well settled that the primary function
of the court is to adjudicate dispute between the contesting parties and
to advance substantial justice. The rules of limitation are not made to
harm the valuable rights of the parties. The discretion is given to the
Court to condone the delay and discretion in that behalf be exercised to
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NM In SC 576/17 Oral Order 3
advance the substantial justice. Considering, the reason for delay in
filing the reply to the Summons for Judgment, it appears that it is
bonafide and not malafide. If the delay is condoned after awarding the
reasonable costs to the plaintiff, no prejudice would cause to anybody.
Hence, the interest of justice requires to condone the delay. In the
result, following order:
: ORDER :
1. Notice of Motion no.2334/18 is allowed.
2. The delay caused in filing the reply to the Summons for Judgment
is hereby condoned subject to costs of Rs.2500/ payable by defendant
to the plaintiff on or before the next date.
3. The payment of costs is condition precedent.
(M.M.UMAR)
Judge,
14/2/2019 City Civil Court, Gr. Mumbai
Date of Dictation : 14/2/19.
Date of Transcription : 14/2/19.
Date of signature : 18/2/19
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NM In SC 576/17 Oral Order 4
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER”
UPLOAD DATE TIME NAME OF STENOGRAPHER
18/2/19 4.30p.m. Mrs.Jyoti R.Mane
Name of the Judge HHJ Shri M.M.Umar(CR No.28)
Date of Pronouncement of
Judgment/Order.
14/2/19
Judgment/order signed by P.O on 18/2/19
Judgment/order uploaded on 18/2/19
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